Landmark marriage equality trial opens in San Francisco

A San Francisco courtroom has become the latest venue in the nationwide campaign for marriage equality, with the opening Jan. 11 of a landmark trial to overturn California’s Prop. 8. The constitutional amendment passed by voters in November 2008 defines marriage as between a man and a woman.

Two same-sex couples, Kristin Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank, are the plaintiffs in the nonjury trial being heard by Chief U.S. District Judge Vaughn Walker. They assert that Prop. 8 violates the U.S. Constitution because it discriminates on the basis of sexual orientation. The proceedings – the first federal trial over same-sex marriage – are expected to last two to three weeks.

Prop. 8 was placed on the November 2008 ballot by opponents of same-sex marriage, and voters passed it with a 52 percent majority, after the state Supreme Court in May 2008 overturned California’s ban on same-sex marriage. Last year the state Supreme Court upheld Prop. 8, though it let stand same-sex marriages that took place between May 2008 and adoption of the initiative.

In the trial’s opening days, the plaintiffs told of their feelings of discrimination. Stier and Perry, who have four children, were among nearly 4,000 same-sex couples who married in 2004 after San Francisco Mayor Gavin Newsom ordered gender-neutral marriage licenses to be issued. Later that year the state Supreme Court invalidated the decree and the marriages.

Perry told the court the message was, “I’m not good enough to be married.” Though she and Stier were happy over the court’s May 2008 ruling, she said they hesitated to marry again because Prop. 8 was waiting in the wings.

Katami described his outrage at Yes on 8’s ad, “Protect our children. Restore marriage,” which warned that lessons about same-sex marriage could be taught in California schools unless Prop. 8 passed.

“I love kids,” Katami said, as he told of his and Zarrillo’s plans to have children as soon as they can marry. “To think that you have to protect some children from me, from Jeff, there’s no recovering from that.”

Attorneys for Prop. 8 say marriage has traditionally been defined in different historical periods and societies, as between a man and a woman. They claim that allowing same-sex couples to marry could “radically alter” that definition, undermining marriage as a “pro-child institution,” and probably leading to fewer heterosexual marriages and more children raised out of wedlock.

The plaintiffs are presenting a series of expert academic witnesses on marriage, civil rights and culture. Harvard historian Nancy Cott pointed to historical practices that have included polygamy and group marriage, and noted “an overall direction of change” in marriage in the U.S., with 19th century laws requiring women to surrender their property to their husbands, and bans on interracial marriages, being overturned in the 20th century. Asked if procreation is the defining purpose of marriage, she called it “one of the purposes but certainly not the central or the defining purpose.”

Yale historian George Chauncey cited examples of longtime discrimination against gays and lesbians in the U.S. and said Prop. 8 continued that practice.

In a telephone interview, Patty Bellasalma, president of California NOW, said she sees “an overall trend of broader and broader acceptance” of marriage equality in the U.S. LGBT rights struggles have been “moving at lightning speed,” compared to struggles for civil rights for African Americans, or for women’s rights, she said, adding that marriage equality is changing the traditional definition from “a male-dominated property system” to an equal partnership. “In essence, what our opponents say is really true, that equal marriage will change the definition of marriage, and that’s a good thing!”

Working together as attorneys for the plaintiffs are two lawyers who were on opposite sides in the 2000 court struggle over the outcome of the presidential election. Theodore Olson, a Republican, represented George Bush, later serving as solicitor general in his administration, while David Boies, a Democrat, represented Al Gore.

California Governor Arnold Schwarzenegger and Attorney General Jerry Brown would not agree to have the state defend Prop. 8. That role was taken up by the initiative’s campaign committee, the Protect Marriage coalition, and lead attorney Charles Cooper.

Whatever the trial’s outcome, it is anticipated that the issue will ultimately be decided by the U.S. Supreme Court.

The trial opened with a controversy over Judge Walker’s decision to allow videotaping and delayed distribution online, while live video and audio streaming were to be provided in federal courthouses in California and three other states. Cooper objected, saying pro-Prop. 8 witnesses could be harassed as a result. In a temporary ruling before the trial started, the U.S. Supreme Court banned the broadcasts. It confirmed the ban in a 5-4 vote Jan. 13.